A very considerable saving in the expenses of the colony would be effected by the consolidation of the two offices of Ship-owner and Contractor into one, and the undertaking to land all stores which are liable to injury in the colony, in a perfect state, at his own risk; for it is a notorious fact, as I have often had occasion to observe in an official capacity, that vast quantities of clothing, stores, and provisions, are landed out of every vessel which arrives in the port, in such a damaged state as to be actually unserviceable; the necessary consequence of which very often is, the total loss of the articles to government; nor has it unfrequently happened, that boxes containing stores have been broke open on the passage, and articles of various descriptions thereby have been purloined to a very great amount. It cannot be doubted that there are many ship-owners who would not scruple to enter into an engagement of the kind to which I have alluded, by sending out his own vessels, and might undertake to convey the stores safely at a very reduced expense. The saving which would thus be effected is surely sufficient to justify the experiment, since the security of the articles, which are in general the most damaged, might be easily guarded by the adoption of a few measures of prudent precaution, and by a careful attention during the voyage. A considerable advantage might also accrue to the merchant from employing his vessels in the Southern Whale-fishery, and a strong probability would exist of his procuring freights from India for his ships, on account of the East India Company: The adoption of this plan seems to be practicable, and there cannot be a reasonable doubt entertained of its superiority over every other in point of economy.
A commissioner or agent might be appointed for the purposes of inspecting the stores and various articles sent to New South Wales, whose duty it would be to see the articles shipped correctly, and thus to prevent those omissions which are daily in the habit of occurring, and which are of more consequence than may, at first glance, be imagined. This person might also be beneficially employed in comparing the stores shipped with the receipts of the masters, so as to preclude all possibility of practices which are inconsistent with the welfare of the government, but which are too common, and can only be prevented by the adoption of such a measure as the one which I now propose. Whenever the governor of the colony should send over a requisition, this agent ought immediately to be furnished with an extract from his excellency's correspondence, so that by these means the requisition would not be liable to neglect, and much trouble would be spared to the Public Office, whose province it had previously been to attend to this department. The reduction of expense which would result from this appointment would be much more than adequate to the increased expense incurred by the appointment and remuneration of a gentleman of probity and respectability to this office.
The method of conveying convicts from England is so very inhuman, that some better and more benevolent measure ought to be adopted. The lives of these unfortunate victims of depravity ought surely to be regarded with as much care as those of any other class of his Majesty's subjects; the contrary of this has, however, been too frequently the case, and some of the masters of the transports who have been entrusted with these captives, have treated them with such uniform rigour that numbers have perished through the intensity of their sufferings. This want of care is to be attributed to the former custom of contracting for the transport of the convicts at so much per head, so that the master has no interest in the preservation of those entrusted to his care. This evil, too, might also be remedied by the contract being made only for the number which might be landed in New South Wales, and by which means the owner of the transport would study to preserve the life of each individual with the most studious attention, since the loss of a single life would be a diminution of his profit, and there could no longer be a danger of the unhappy prisoners being suffered to perish from any negligence or severity. In addition to this, the surgeon and the master might receive a reward for each person whom they delivered in good order, if their humanity was such as to require a pecuniary stimulus. I believe this has been tried in some instances, at least report has so stated, and, if so, there must have been sufficient evidence gained of the superiority of the method over that which was formerly adopted. It might not be a bad plan to try if some of the superfluous frigates in the service might not be converted into good transports; for there could be no doubt that, in vessels of this description, the accommodations which might be afforded to the convicts would much exceed those of the common transport ships, and the prisoners would of course be sooner fit for duty, and less liable to the attacks of disease. Out of several ships that have arrived, not two-thirds of the number of convicts originally put on board have reached their place of destination; and this mortality, it is feared, must have been occasioned by the embezzlement of the provisions and stores which were intended for the use of the captives. It is also much to be feared that an undue degree of severity has oftentimes been exercised towards the convicts, under the pretence of some attempts to mutiny and effect their escape, and such methods of throwing censure upon the innocent, to excuse wantonness and cruelty, cannot be too severely reprehended, if reprehension be all that can be inflicted upon the perpetrators of such diabolical deeds. The treatment has been directly reverse where a King's officer has been placed on board the transport, who evinced an unshaken resolution to perform his duty. The convicts which came out on board the Royal Admiral, Captain Bond, met with a treatment, and arrived in a condition, which reflected the highest honour on the humanity and prudence of her esteemed commander, and might be properly held forth as a model and an example to the masters of all transports who may in future be employed in the service. Every attention was paid to their cleanliness in particular, care was taken to provide them with the most wholesome provisions, and their messes were so varied as to prevent any dislike arising from repetitions with too much frequency; on the slightest appearance of indisposition, some nourishing broths, wine, &c. were constantly ordered; twice a day they were mustered on deck, and the ship was completely fumigated: The whole arrived in the most excellent health and spirits imaginable. If every master had displayed a similar good conduct, there would have been no ground for the present complaint, nor any room for the remedy which I suggest in the preceding part of this article.
A number of gentlemen, of small fortunes, might be appointed, whose characters will bear the strictest investigation, and whose talents are adequate to the task, to go over to the colony as justices of the peace, in order that the general welfare and individual security of the colony should be promoted. To these persons many indulgences might be granted, and a respectable salary ought to be attached to the office, so as to enable them to support that degree of respectability and dignity which their situation requires; so as to make their interest totally unconnected with those pursuits which have led so many to sacrifice their principles, and to neglect their duty, for the sake of pursuing the search after independence. The incorruptibility which ought to characterise the conduct of a magistrate should be so fortified by every prudent precaution, that it may at no time, however remote, be in danger of agitation; nor would it be prudent, in another point of view, to permit these gentlemen to mingle in occupations which must have an evident tendency to distract their attention from those arduous tasks which they would be called upon to fulfil, in a country where criminals must naturally abound. Numbers of persons are doubtless to be found in Great Britain who would gladly accept these appointments, whose educations have taught them to look above situations to which unforeseen and unavoidable calamity may have reduced them; men who have preserved their principles and integrity unshaken by the attacks of adversity, and who, consequently, must be eminently qualified to fill such offices as those which I have here suggested. The example which these persons would hold out to the rest of the settlement, could not fail of producing very beneficial effects upon the moral conduct of those who copy the models of their superiors; and would also be of service in assisting to create a society of power and independence, which might operate as a check upon the influence of all other descriptions of persons.
As instances of the irregularities that have been practised by some of those in magisterial capacities, I need repeat none others than that I have known men without trial to be sentenced to transportation, by a single magistrate at his own barrack; and free men, after having been acquitted by a court of criminal judicature, to be banished to one or other of the dependent settlements: And I have heard a magistrate tell a prisoner who was then being examined for a capital offence, and had some things found upon him which were supposed to have been stolen, and for which he would not account, that, were he not going to be hanged so soon, he (the magistrate) would be d----d if he would not make him say from whence he got them. Nor do I believe it less true, that records of an examination, wherein a respectable young man was innocently engaged, have been destroyed by that same magistrate before whom the depositions were taken. These and numerous other cases which I could enumerate, cannot admit of a doubt but that such a regulation must tend greatly to the preservation of the liberty of the subject, the property of all classes of the inhabitants, and the general interest and security of the colony at large.
I should also strongly advise, that nine or ten of the principal officers of government should be authorized to act in the capacity of council, to whom the governor could resort, in all periods of difficulty and delicacy, for advice how to shape his conduct, by which means he would not, in any future instance, be left wholly dependent upon his own judgment. The good effects of this arrangement must soon be evident, since the issuing of an order of council could not fail to carry with it much additional weight to that which would be attached to an act of the governor alone, and would tend to the speedy suppression of any appearance of insubordination, and discourage those who should incline so to act as to originate a spirit of dissatisfaction in the settlement. To a want of this council, it may not be too much to attribute the present unsettled state of the colony, and the maturation of a faction which has perverted the streams of justice, and which has impeded the growth of opulence throughout the settlement, merely to enrich a select party at the expense of the general welfare, and consequently to spread vice and ruin through a land, whose prosperity has never become their care, although it was a solemn pledge of their leaders to support and cherish it to the very utmost of their ability
In addition to this council composed of the chief officers of the government, I consider it essentially requisite that a barrister should be appointed as a counsellor to the governor, at all times when his excellency is referred to in matter of doubtful disputation, which must oftentimes occur in the colony, and which frequently reduces him to an unpleasant dilemma. Aided by a legal adviser, however, his judgment must be strengthened, and his decision would be more weighty, without creating in his breast those uneasy sensations which must arise under different circumstances. In the present conformation of the government, the governor has no legal adviser to have recourse to when an appeal is made to his decision, which is not rarely the case, except the judge advocate, and this officer having previously given his opinion in the court below cannot, of course, be again consulted on the same subject. In consequence of this default of advice, the governor must give his own opinion, which may or may not be in conformity with the laws of the mother country, just as it may happen, and according to the knowledge he may possess of the principles and practice of jurisprudence, which is seldom very deep in persons whose inclinations are so opposite to this kind of study as the officers of the navy and army, from whom the governors of the colony have hitherto been selected. This counsellor could be selected from those who might be induced to listen to such a proposal, as may place before them a certain liberal competence, with the opportunity of rising to independence in a sphere where the number of competitors would be so low as to render final success less precarious. It is needless to expatiate more amply upon the benefits which must accrue from an appointment of this nature, which would impose but a trifling additional burden on the crown, since it is extremely possible that a barrister might be obtained for the salary of 150l. per annum, which, together with the victualling of himself and his family and servants from the public stores, and residence in the colony rent-free, added to the other customary indulgences given to persons from whose services utility is expected to be derived, would not make his situation worth less than 500l. per annum, a temptation which must possess some weight in the minds of those who meet with inadequate encouragement in England.
The legislative code of the colony requires a careful revision, since the numerous residents who have arrived in the settlement, and their increasing respectability and opulence, render such a measure necessary. That system which would suit the original establishment, composed only of two classes, the officers of government and the convicts, will scarcely be expected to adapt itself to the wants and wishes of a community advanced in civilization: In the former case, the principal object was to punish delinquency; in the latter, to secure property, and insure the safety of that wealth which now began to shew itself in the multiplication of luxuries, and the augmentation of individual splendour. The present system is so liable to abuse, and has given just occasion for so many complaints on the part of those traders who visit the colony in great numbers, as well as of the more respectable classes of the inhabitants themselves, that it is become highly expedient to substitute in its place one which shall be incorruptible, and which, from its own importance, may command a greater degree of respect. At the head of this court ought to be placed a chief justice, who, by the respectability of his salary, should be effectually placed above the reach of every motive of an improper or injurious nature; and in order to lighten this expense to the crown, certain court fees might be established which would materially assist to swell the amount of the remuneration which ought to be attached to this high office, so as to render it worthy the notice of men who are fitted, by habit and education, to execute its duties in a correct and honourable manner. The rent of the residence appointed to this gentleman ought to be taken from his shoulders, and the public stores should find provisions for himself, his family, and his servants, together with fuel and candles; the wages of a limited number of domestics might also be paid by government; and thus he would be exonerated from so many burthens of a pecuniary nature, that a salary which might at the first glance seem inadequate to the trust reposed, would, on considering every circumstance, appear less exceptionable, and more equal to the dignity which would externally be attached to the office. It is almost superfluous to mention, that the utmost care should be taken in the choice of a proper person to fill this situation, since his character, his conduct, and his general habits, ought to be such as to render him like Caesar's wife--"not only free from suspicion, but free from the suspicion of being suspected." With a person of this description to superintend the court of judicature, there could no longer exist causes to fear the introduction of party motives and malicious prejudices, to contaminate the stream of justice; a strict impartiality would direct every decision, and those who were doomed to meet with disappointment in their views, while they writhed under its decision, would not be able to impeach its integrity. If it were found necessary to adopt any further measures to preserve their honour unsullied, the rendering their situations limited might probably produce a good effect; and a pension might be allowed to them on their return to England, if they were able to produce certificates from the governors and lieutenant-governors who had held command in the colony during their residence, attesting the incorruptibility of their conduct, and the zeal which they had displayed in the due execution of their duty. A farm might also be allowed to the individual placed in this important office, if it were thought expedient, under certain restrictions which should prevent him from abstracting his attention from his official duties, at periods when his professional avocations might require his presence in the service of the public. A salary of 500l. per annum, with the addition of these indulgencies, would be equal to 1200l. a year.
An alteration in the judicial code appears also to be necessary, or at least highly expedient. In the criminal court, the judge advocate and six naval and military officers are at present empowered to decide and try delinquents; and although I believe that their opinions on verdicts have latterly been almost unanimous, yet I cannot but call to recollection a period when, painful to relate, the naval and the military were too frequently, if not generally, opposite in their determinations: Nor is this the least part of the evil; for evidence is on record of persons having been bribed, or controlled, by one or more of the members of the court then sitting in judgment, to accuse their industrious neighbour, upon oath, of crimes which he had never committed, in order to lay a ground for the ruin of the unfortunate individual, merely because his industry and prosperity in trade were objects of envy. If such a system is not suppressed, it is not possible for the human mind to calculate upon the termination of the mischiefs which may ensue from it; it is not possible for humanity to look upon the probable consequences, without emotions of horror and dismay. To prevent, therefore, the recurrence of any circumstance so flagrant and unjust, it is absolutely necessary to take some measures to render the criminal and civil courts free from every kind of prejudice; for what argument can justify the committal of the existence or the fortunes of individuals, to the mercy or the caprice of men who are blinded by prejudice.--Prejudice and party must be fatal to the progress of justice; and as the preceding remarks are nothing more than the details of facts which are notorious to every individual who has lived long in the colony, there is no occasion for my saying much in addition, to prove that a necessity does exist for some change in the judicial code of the settlement; and it is much to be wished and desired, that by that change the power may be vested in honest and incorruptible hands, which may be held out equally to punish the guilty, and to protect the oppressed; to curb the insolence of pride, and foster humble merit; and, finally, to render New South Wales an exact copy from that fine picture of freedom and justice which is represented in the mother country.
That the trial by jury should be introduced into the colony, has long been a desideratum amongst the best-informed inhabitants of the colony; since its effects could not be otherwise than beneficial where such universal iniquity prevails, and where even in the courts of law many enter with impure motives and unclean hands; since the greater part of the community are more or less implicated in the notorious and impoverishing impositions which are continually practised amongst all classes. When I say that this blessing has been desired by the well-informed, I must also be understood to mean the well-intentioned only; for its establishment in the settlement would unavoidably prove fatal to that ruinous traffic, from which several of the superior classes have derived their opulence and consequence, and it is not therefore to be expected, that such as these would wish to behold the approach of that scourge which would remove from them the power of extending universal evil for the promotion of their individual good. By these persons the admission of the trial by jury is sincerely and ardently deprecated, while it is wished for with equal fervency by others, and particularly those oppressed inhabitants, whose miseries and necessities have been the means of increasing the wealth, and hardening the feelings of those who have so long pursued the destructive system of monopoly. It would not have been practicable to introduce the trial by jury at the commencement of the settlement, since there were none but convicts, and a few free persons who were paid and supported by the crown; but the case is now materially altered, and the great influx of free, independent, and respectable inhabitants, which the later years of the colony have witnessed, not only render such a measure practicable and prudent, but loudly call for it as a step rendered indispensable to the welfare of the community. Numbers have also served their terms of transportation, or have been made objects of royal bounty on account of their signal good conduct, and have thus swelled the numbers of free residents; so that there could be no difficulty in making out a list of jurors, sufficient for every purpose, even if the assizes were ordered to be held monthly, which is a more frequent occurrence than in the mother country. Objections may be started to the propriety of receiving those, who have been convicted and have suffered the sentence of the law, as jurors; but if this description of persons are worthy to be received as evidence at all in a court of justice, and there are instances sufficient on record to prove this to have been the case; and where this evidence of persons so objected to and proscribed, has been the sole means of the conviction to death of the accused, surely it could afford no room for cavil that a jury should in part be composed of persons, whose conduct during the term of their punishment has been such as to give general satisfaction, and who have proved by their conduct that they have reformed their dispositions, corrected their principles, and are likely to become useful, and consequently valuable, members of society; and none others should be admitted on the list. Besides, even allowing this objection to have some weight, will reason and policy justify the carrying of this principle to such a length, as to exclude from this privilege those free settlers who have been guilty of no crime, and have suffered no punishment? Shall these, in return for their voluntary exile from their native land to promote the interest of the colony, lose the benefit of this inestimable distinction, which operates as a security to the freedom of Englishmen, and renders it so far superior to the boasted independence of any other nation in the world? If it were thought inexpedient to admit twelve jurors, in consequence of the limited population of the settlement, eight might be allowed in the first instance, and the rest could be added when circumstances would permit; so that the principle of the system would be established, and these could be instructed in the laws of the land from the bench. In each of the settlements there are a great many persons competent to fill the office of jurors, and it is to be hoped that no long interval will be suffered to elapse without the colony being permitted to participate in those inestimable privileges which render the mother country the envy of the world.